Legal News

Circuit Precedent? What Circuit Precedent?

By Brian Harris

 By Bruce P. Merenstein

Numerous procedural and jurisdictional issues that federal court practitioners confront on a daily basis have yet to be addressed by the Supreme Court.  Thus, these issues are governed by the law of the U.S. Circuit Court of Appeals in which a case is pending and lawyers dealing with these threshold issues ? involving such matters as statutes of limitations and the timeliness of appeals ? must stay abreast of circuit precedent to avoid missing deadlines or facing other procedural pitfalls.

Yet, a couple of recent decisions from the 3rd U.S. Circuit Court of Appeals and from the 9th Circuit demonstrate that compliance with circuit precedent may not be enough.  Rather, practitioners must be aware of potential Supreme Court decisions in the pipeline that may overturn circuit precedent, and may even have to consider the possibility of a Supreme Court decision down the road ? in a case not even on the horizon ? disrupting settled expectations arising from circuit precedent.

First, the 9th Circuit case.  In United States ex rel. Haight v. Catholic Healthcare West, the plaintiffs brought a qui tam action against a number of health care providers under the federal False Claims Act.  Under the act, the United States has a right to intervene but can choose not to do so, as it did in Haight.  The district court eventually granted defendants? motion for summary judgment, and 51 days later, plaintiffs filed a notice of appeal to the 9th Circuit.

Under Rule 4(a) of the Federal Rules of Appellate Procedure, a notice of appeal in a civil case must be filed within 30 days of a final judgment, unless ?the United States or its officer or agency is a party,? in which case the notice of appeal must be filed within 60 days.  At the time plaintiffs filed their notice of appeal ? October 4, 2007 ? the 9th Circuit precedent provided that the 60-day time period applies in all qui tam cases, even when the United States declines to intervene in the case. This 9th Circuit rule was also the rule in two other circuits.

On the other hand, one circuit had a longstanding contrary view ? the 30-day rule applied when the United States declined to intervene in a qui tam action.  Shortly after the notice of appeal was filed in Haight, the 2nd Circuit joined the minority view that the 30-day rule applied.  And in January 2009, more than a year after the plaintiffs in Haight had filed their notice of appeal in reliance on the Ninth Circuit?s 60-day rule, the Supreme Court granted a petition for certiorari to resolve the circuit split.

The Supreme Court issued a unanimous opinion five months later, holding that the 30-day period applies when the United States does not intervene in a qui tam action.  Meanwhile, back in the 9th Circuit, the Haight appeal remained pending.  You can guess what happened next.  The 9th Circuit, applying the Supreme Court?s new precedent, dismissed the Haight appeal as untimely, as it had been filed 51 days after the final judgment was entered.  Of course, when that appeal was filed two years earlier, the extant law of the 9th Circuit was that such an appeal was timely if filed within 60 days of the final judgment.

The 3rd Circuit recently addressed a similar issue, but this one involved not the timeliness of an appeal but the timeliness of the underlying action itself.  In 1994, the Supreme Court decided the seminal case of Heck v. Humphrey, in which the court held that a claim for malicious prosecution under 42 U.S.C. § 1983 accrues only after a conviction has been reversed or effectively nullified.  Two years later, in Smith v. Holtz, the 3rd Circuit extended this rule to future prosecutions, so that a claim under § 1983 would not accrue until a prosecution had been brought and the conviction vacated.

In the recent 3rd Circuit case, Dique v. New Jersey State Police, the plaintiff brought a § 1983 action in 2004, within the two-year limitations period of when his claim accrued under the 3rd Circuit?s rule established in Smith.  Three years later, however, in Wallace v. Kato, the Supreme Court rejected the Smith rule and held that a § 1983 claim for false arrest accrues at the time of arrest, and not after a possible future conviction is vacated.  For the Dique plaintiff, this meant his claim accrued in 2001, or three years before he filed suit.  Thus, under the new rule established by the Supreme Court three years after the Dique case was filed, plaintiff?s claim was untimely. Once again, a party complied with well-established circuit precedent only to be foiled many years later when the Supreme Court adopted a contrary rule. 

The lesson from these cases is that, when faced with an issue not yet addressed by the Supreme Court, a practitioner must consider not only circuit precedent, but also contrary rules from other circuits.  In short, since it is always better to be safe than sorry, lawyers would be well advised to file cases or appeals within the timeframe of the most conservative possible interpretation of the relevant rule or statute, even if that period is shorter than circuit precedent dictates.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts.

www.schnader.com

Full post as published by The Legal Intelligencer Blog on June 23, 2010 (boomark / email).